The United States Department of Agriculture (USDA) recently updated its Frequently Asked Questions (FAQs) webpage regarding COVID-19 to include a section on President Trump’s Executive Order (EO) invoking the Defense Production Act (DPA) for Meat and Poultry Processors. These FAQs address the role USDA plays in implementing the EO, what meat and poultry plants should do under the EO, and the potential actions USDA may take to ensure meat and poultry processors continue operations consistent with federal guidance issued by the Centers for Disease Control and Prevention (CDC) and the Department of Labor’s (DOL) Occupational Health and Safety Administration (OSHA). Notably, USDA recommends meat and poultry plants that are closed follow the OSHA/CDC guidance specific to the meat and poultry industry. Further, if necessary, USDA may issue orders under the EO and the DPA requiring meat and poultry establishments to fulfill their contracts. Below, we provide the FAQs released by USDA.

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A recent court decision struck down a 2018 final rule by the U.S. Department of Agriculture’s (USDA’s) Food and Nutrition Service (FNS), which had relaxed sodium and whole grains requirements for the National School Lunch Program and National School Breakfast Program (school meals programs). The Center for Science in the Public Interest (CSPI) and Healthy School Food Maryland had filed suit challenging the 2018 final rule as violating the Administrative Procedure Act (APA). The court held that the 2018 final rule was not a logical outgrowth of the agency’s earlier 2017 interim final rule (IFR) because it included changes not contemplated in the IFR. The court therefore struck down the rule and returned it to FNS for further proceedings consistent with the court’s decision. As a result of this decision, FNS’s 2012 standards for sodium and whole grains in school meals are now reinstated.

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On May 1, 2020, Blue Bell Creameries L.P. (Blue Bell) and the U.S. Department of Justice (DOJ) entered into two separate agreements related to the 2015 listeriosis outbreak linked to Blue Bell ice cream. This memorandum provides an overview of the negotiated agreements, the facts giving rise to the agreements, and key takeaways for the food industry. These takeaways include: (1) DOJ continues to actively pursue criminal investigations of companies in the food industry; (2) DOJ places a high interest not just on food safety, but also on the company’s communications with the public and its customers; (3) DOJ will take note of remediation efforts implemented by food manufacturers for the purposes of negotiated agreements; and (4) the False Claims Act is a statute that food manufacturers should become familiar with in short order, particularly if they sell food products to government customers.

In the first agreement with DOJ, Blue Bell agreed to plead guilty to two strict liability misdemeanors under the Federal Food, Drug, and Cosmetic Act (FFDCA) and pay a criminal fine and forfeiture totaling $17.25 million. In the second agreement with DOJ, Blue Bell also agreed to pay $2.1 million to resolve (without any admissions of liability) civil False Claims Act allegations regarding ice cream product sold to federal government customers. The total of $19.35 million in fine, forfeiture, and civil settlement payments is the second largest amount ever paid to resolve a food safety matter.

Separately, the former president of Blue Bell was charged with seven felony counts alleging that he orchestrated a scheme to deceive certain Blue Bell customers after he learned that products from the company’s Texas factory tested positive for Listeria monocytogenes.

Disclosure: Hogan Lovells represented Blue Bell in connection with these matters. The information contained in this client alert is based strictly on publicly available information. Hogan Lovells does not represent the former president of Blue Bell.

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Late Tuesday, U.S. Department of Agriculture (USDA) Secretary Sonny Perdue sent letters to state governors and meat and poultry processing company leaders setting forth USDA’s expectations for continued operations during the COVID-19 pandemic. These letters follow President Donald J. Trump’s Executive Order issued last week ordering USDA to take all appropriate actions to ensure that meat and poultry plants continue operations consistent with industry guidance jointly issued by the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) intended to protect plant worker safety. This post summarizes these letters and outlines key takeaways.

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Late yesterday, President Donald Trump issued an Executive Order invoking the Defense Production Act (DPA) to protect the meat and poultry production supply chain. In the Executive Order, entitled, Delegating Authority Under The Defense Production Act With Respect To Food Supply Chain Resources During The National Emergency Caused By The Outbreak Of COVID-19, the President finds that the meat and poultry supply chain meets the criteria under Section 101(b) of the DPA. In doing so, the President has reinforced the importance of the meat and poultry supply chain to national security and has triggered various mechanisms that allow the federal government to prioritize production and allocate supply of meat and poultry products should it wish to do so. Moreover, the Executive Order repeatedly emphasizes the importance of meat and poultry processors being permitted to continue operations provided they are following recent interim guidance jointly issued by the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA).

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This post summarizes two recent documents the U.S. Food and Drug Administration (FDA) issued for the Food and Agriculture Sector in response to the COVID-19 outbreak. The first, “Use of Respirators, Facemasks, and Cloth Face Coverings in the Food and Agriculture Sector During Coronavirus Disease (COVID-19) Pandemic,” is intended as a quick-reference guide on the use of respirators, facemasks, and cloth face coverings by the Food and Agriculture Sector during the pandemic. The second, “What to Do if You Have COVID-19 Confirmed Positive or Exposed Workers in Your Food Production, Storage, or Distribution Operations Regulated by FDA,” outlines key steps that employers and workers can take to help stay open, prevent and slow the spread of COVID-19, and support continuity of essential operations if workers are diagnosed with or exposed to COVID-19, or show symptoms associated with COVID-19.

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The Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) have issued interim guidance on COVID-19 considerations for meat and poultry processing workers and employers. This Interim Guidance, one of the most comprehensive to date for a specific industry, was developed recognizing that meat and poultry establishments and their operations are critical to the security of the nation’s food supply and is intended by the agencies to facilitate ongoing operations and support while also mitigating the risk of spreading COVID-19.

USDA strongly recommends establishments involved in beef, pork, and poultry processing use the recommendations highlighted in the Interim Guidance document where practical, recognizing that how they are implemented may differ given the unique circumstances of establishments and processing facilities nationwide. Although the Interim Guidance is focused on meat and poultry workers, the recommendations may be of interest to all food sector companies.

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On April 21, 2020, Chipotle Mexican Grill, Inc. (Chipotle) and the U.S. Department of Justice (DOJ) entered into a three-year deferred prosecution agreement (DPA) in connection with norovirus and Clostridium perfringens outbreaks that occurred between August 2015 and July 2018. Chipotle agreed to pay $25 million in criminal fines and implement a number of systematic changes to its food safety procedures. Below we provide the facts of the case, the terms of the agreement, and key takeaways.

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The U.S. Food and Beverage practice at Hogan Lovells has once again been ranked Band 1 for Food and Beverage: Regulatory and Litigation – Nationwide by Chambers USA 2020.

Seven food group lawyers from Hogan Lovells have been ranked individually, including all of our food group partners. Senior associate Veronica Colas was selected to the “Associates to Watch” category.

For more information and to read the full write up, please click here. 

Chambers Commentary:

What the team is known for: A deep bench of practitioners with experience in a wide array of food and beverage issues. Impressive work in complex cases including class actions and sophisticated FDA disputes. Earns high praise for its proficiency in regulatory and compliance matters and is regularly called upon for legislative and policy advice. An enviable roster of clients includes international and US-based trade associations and market-leading food manufacturing companies. Regularly called on to advise clients on both their internal governance and the effects of new regulations on their businesses.

Strengths: One client reports: “They’re great. They are very easy to work with and they are very smart.”

Another client adds: “The firm is always immediately available and they understand our needs and culture. We have access to the expertise throughout the firm’s different areas of practice.”

“Hogan Lovells has a deep understanding of my industry and business. They are very responsive and able to offer assistance on complex matters in a short amount of time,” affirms another source.

Work highlights: Represented a coalition of bagged salad producers in negotiations with the FDA, following the issuance of an advisory warning US consumers against eating romaine lettuce. The firm assisted in negotiating labeling changes to lettuce packaging and in negotiations with the FDA to issue a new advisory endorsing the return to market of romaine lettuce.

Notable practitioners

The “excellent” Martin Hahn has significant experience of handling matters before the FDA and is described as “a great regulatory guy” with “deep expertise”  by clients. He is regularly called upon to advise on an array of compliance issues, including labeling requirements and food safety matters.

Gary Jay Kushner provides counsel to a broad range of food companies and industry associations. He is particularly adept at advising on regulatory issues relating to distribution, marketing and safety inspections. One client states: “He not only brings world-class knowledge and legal advice, but also displays impressive behavioral and leadership skills. I trust him as a confidant and adviser.”

Joseph Levitt is regarded by market sources as one of the “top lawyers” in the food and beverage space. He provides expert advice on FDA inspections, food safety plans and environmental monitoring programs, among other matters.

Steven Steinborn is a respected authority within the food and beverage sphere. His impressive practice incorporates a broad spectrum of regulatory issues, such as FDA and USDA inspections, new menu labeling and product recalls.
Maile Hermida
is held in high regard by clients for the depth of her regulatory expertise, particularly in relation to FDA and USDA rules and the Food Safety Modernization Act. She also possesses a deep knowledge of labeling and advertising issues. She is recognized as being “exceptionally strong” and a “tremendous lawyer.”

Elizabeth Fawell‘s client base encompasses multinational corporations and trade associations. She adeptly advises on FDA regulation as well as issues relating to foodborne illness and product labeling. One impressed client reports: “Elizabeth is critical to my being able to do my job. She makes my life easier in a hundred different ways on a weekly, if not daily basis.”

The “exceptionally strong”  Veronica Colas is regularly called upon to advise organizations on labeling requirements, compliance with food safety regulation and advertising issues. One client reports: “Veronica is my go-to for many things. She is very responsive and always helpful.”

The complete listings for Hogan Lovells 2020 Chambers USA rankings are available here.

In light of a recent wrongful death action brought against a major retailer related to an alleged workplace COVID-19 infection, businesses with continuing operations are concerned about potential liability risks they may face as a result of COVID-19.

Join us on Tuesday, April 28th at 12 p.m. ET as partners Michael Kidney and George Ingham discuss the liability risks that businesses face (including tort liability and workers’ compensation), as well as steps businesses can take to mitigate those risks.

Register today.